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Franklin v. Franklin
Citations: 582 So. 2d 1146; 1991 Ala. Civ. App. LEXIS 322; 1991 WL 86043Docket: 2900141
Court: Court of Civil Appeals of Alabama; May 24, 1991; Alabama; State Appellate Court
The husband filed a divorce-related motion on May 16, 1990, shortly after the parties were divorced on April 16, 1990. This initial posttrial motion was denied on August 20, 1990. Subsequently, on October 22, 1990, the husband, representing himself, sought to file another motion to reconsider and a belated appeal. The wife contested the timeliness of this second motion, leading to the trial court granting her motion to strike on November 13, 1990. On December 4, 1990, the husband filed a notice of appeal against the divorce decree instead of the order to strike. The key legal issue was whether the appeal should be dismissed for being untimely. According to Rule 4 of the Alabama Rules of Appellate Procedure, an appeal must be filed within 42 days of a final judgment. The initial motion was effectively denied by operation of law on August 14, 1990, and the deadline for appeal expired on September 25, 1990. The husband's second posttrial motion did not toll the appeal period since the trial court lacked jurisdiction to consider it, as it did not present new evidence and was based on previously addressed issues. Consequently, the husband's notice of appeal was filed over two months late. The appeal was dismissed as untimely, and the wife was awarded $500 in damages for filing a frivolous appeal. This opinion was authored by Retired Appellate Judge L. Charles Wright and was adopted by the court, with all judges concurring.